Citation NR: 9627084
Decision Date: 09/23/96 Archive Date: 10/03/96
DOCKET NO. 94-48 910 ) DATE
)
)
Received from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to reimbursement or payment of the cost of
unauthorized private medical services associated with the
veteran’s hospitalization at Fort Sanders Sevier Medical
Center, from April 19 to April 20, 1993.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Counsel
INTRODUCTION
The veteran had active service from February 1943 to July
1944.
The appeal arises from a decision dated in June 1993 in which
the Medical Administration Service (MAS) of the Department of
Veterans Affairs Medical Center (VAMC) in Nashville,
Tennessee, denied reimbursement or payment of the cost of
unauthorized private medical services associated with the
veteran’s hospitalization at Fort Sanders Sevier Medical
Center, from April 19 to April 20, 1993. The veteran has
perfected an appeal of that decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that a broken wrist amounts
to an emergency when one has complete paraplegia and it is
crucial that he be able to move his wheelchair, transfer, or
use the bathroom. It is also asserted that if the veteran
had not received immediate care for his fractured right
radius it could have led to more serious consequences.
Additionally, the veteran maintains that he refused admission
to the Department of Veterans Affairs (VA) facility in
Tennessee because he could not receive the care he needed
there for his spinal cord condition and complications. He
also contends that he had received unacceptable care there in
the past because they were unfamiliar with the needs of those
with spinal cord injuries. Finally, the veteran asserts that
he initiated contact with the VA within 72 hours of his
admission to Fort Sanders Sevier Medical Center.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence is against the
claim for entitlement to reimbursement or payment of the cost
of unauthorized private medical services associated with the
veteran’s hospitalization at Fort Sanders Sevier Medical
Center, from April 19 to April 20, 1993.
FINDINGS OF FACT
1. All relevant information necessary for an equitable
disposition of the appeal has been developed.
2. Medical treatment without VA authorization was rendered
at Fort Sanders Sevier Medical Center, from April 19 to April
20, 1993.
3. The medical treatment from April 19 to April 20, 1993,
was not in response to a medical emergency; and VA medical
facilities were feasibly available.
CONCLUSION OF LAW
The criteria for reimbursement or payment of the cost of
unauthorized private medical services associated with the
veteran’s medical treatment at Fort Sanders Sevier Medical
Center, from April 19 to April 20, 1993, are not met.
38 U.S.C.A. §§ 1728, 5107 (West 1991); 38 C.F.R. §§ 17.50c,
17.50d, 17.80 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the claim for entitlement to
reimbursement or payment of the cost of unauthorized private
medical services associated with the veteran’s
hospitalization at Fort Sanders Sevier Medical Center, from
April 19 to April 20, 1993, is well-grounded within the
meaning of 38 U.S.C.A. § 5107, that is, the claim is
plausible, meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990).
The Board further finds that the VA has met its duty to
assist in developing the facts pertinent to the veteran's
claim. 38 U.S.C.A. § 5107.
Private hospital records dated in April 1993 show that the
veteran was admitted to Fort Sanders Sevier Medical Center on
April 19, 1993, and discharged from said facility on April
20, 1993. The veteran essentially contends that he should be
reimbursed for the care he received at that facility on those
dates.
The Board notes that reimbursement or payment of the expenses
of care, not previously authorized, in a private or public
(or Federal) hospital not operated by the VA, or of any
medical services not previously authorized, including
transportation, may be paid under the following
circumstances:
Services were rendered for an adjudicated
service-connected disability; or for a
nonservice-connected disability
associated with and held to be
aggravating an adjudicated service-
connected disability; for any disability
of a veteran who has a total disability
permanent in nature resulting from a
service-connected disability; or for any
illness, injury, or dental condition in
the case of a veteran who is
participating in a VA rehabilitation
program and who is medically determined
to be in need of hospital care or medical
services for any of the reasons
enumerated under the provisions of
38 C.F.R. § 17.48(j) (1995); and
Services were rendered in a medical
emergency of such nature that delay would
have been hazardous to life or health;
and
VA or other Federal facilities were not
feasibly available, and an attempt to use
them beforehand or obtain prior VA
authorization for the services required
would not have been reasonable, sound,
wise, or practicable, or treatment had
been or would have been refused.
38 U.S.C.A. § 1728; 38 C.F.R. § 17.80.
The Board notes that the veteran is service-connected for
myelitis, transverse, traumatic, with loss of use of both
legs and bowel and bladder control, as the residuals of
gunshot wounds, and that said disability is evaluated as 100
percent disabling. However, for the reasons discussed below,
the Board finds that all the criteria required to establish
entitlement to reimbursement or payment of the cost of the
unauthorized private medical services at issue in this case
are not met.
According to the April 1993 private hospital records, the
veteran had recently sustained a Colles fracture after
falling from his wheelchair and had been placed in a cast the
previous week in the office of Alan L. Whiton, M.D., a
private physician. The hospital report also shows that the
veteran had contacted Dr. Whiton over the weekend and advised
the physician that he could not function at home, could not
transfer, and felt that he would be bed bound and needed
hospitalization.
The veteran contends that if he had not received immediate
care for his fractured right radius it could have led to more
serious consequences. According to the April 1993 private
hospital records, while hospitalized, the veteran complained
of cast tightness and a cast technician replaced the cast and
there were no apparent soft tissue problems. However, the
Board notes that veteran’s broken wrist was initially treated
earlier in the week at a physician’s office; and the Board
finds that the veteran’s complaints of cast tightness did not
constitute a medical emergency. The veteran also asserts
that an emergency existed because his broken wrist prevented
him from being able to move his wheelchair, transfer, or use
the bathroom. However, the Board finds that the effects of
the veteran’s fractured wrist on his ability to move his
wheelchair, transfer, or use the bathroom does not constitute
a situation of such nature that a delay would have been
hazardous to the veteran’s life or health.
With regard to whether VA or other Federal facilities were
feasibly available, the April 1993 private hospital records
show that attempts were made to contact the VA during the
veteran’s hospitalization but the veteran declined to go to
the VA facility in Johnson City, Tennessee, which was the
only facility which would provide transportation. Dr. Whiton
also reported that he had spoken to a physician at the VA
facility in Asheville, North Carolina, who agreed to evaluate
the veteran and probably accept him as an inpatient but that
the veteran was responsible for his own transportation.
Also, the veteran was able to contact his private physician
about hospitalization prior to his admission to Fort Sanders
Sevier Medical Center on April 19, 1993. According to Dr.
Whiton, when the veteran contacted him and expressed his
feeling that he required hospitalization, the veteran felt
that he could be transferred to a VA facility on a weekday.
However, there is no probative evidence tending to show that
an attempt to use VA facilities beforehand or obtain prior VA
authorization for the services required would not have been
reasonable, sound, wise, or practicable.
Additionally, a VA facility in Johnson City, Tennessee, was
willing to accept the veteran and provide him with
transportation. However, the veteran did not wish to be
admitted to that facility. He contends that he has received
inadequate treatment at that VA facility in the past. While
there is no objective evidence supporting the veteran’s
contention that the VAMC in question provided inadequate
treatment for spinal cord injuries, he was essentially
seeking care and assistance in performing daily activities
with a wheelchair while his fractured wrist was healing
rather than medical treatment for a spinal cord injury. This
would not be a dispositive consideration in this matter
anyway, as it is readily apparent from the factual
circumstances in this case that the veteran elected,
according to his preference, to receive private treatment on
the occasion in question, which is his right. Nevertheless,
the factors governing this preference do not afford a basis
for reimbursement of any expenses incurred.
Also, another VA facility in Asheville, North Carolina, was
willing to accept the veteran; and while that facility would
not provide the veteran with transportation, the veteran was
able to arrange for transportation and leave the private
facility the day after he was admitted there. Under the
circumstances, the Board finds that VA facilities were
feasibly available.
Additionally, while the veteran does not specifically contend
that he applied for VA authorization for the treatment
received at Fort Sanders Sevier Medical Center from April 19
to April 20, 1993, his representative has noted that the
veteran or his private physician notified the VA within 72
hours of his admission to Fort Sanders Sevier Medical Center
on April 19, 1990, and that he was willing to report to the
VA medical facility in Asheville, North Carolina, as soon as
he was stable.
The admission of any patient to a private or public hospital
at VA expense will only be authorized if a VAMC or other
Federal facility to which the patient would otherwise be
eligible for admission is not feasibly available. A VA
facility may be considered as not feasibly available when the
urgency of the applicant's medical condition, the relative
distance of the travel involved, or the nature of the
treatment required makes it necessary or economically
advisable to use public or private facilities. 38 C.F.R.
§ 17.50c. The provisions of 38 C.F.R. § 17.50d impose the
requirement that a private hospital admission must be
authorized by the VA in advance and provides that
notification and application within 72 hours of an emergency
admission may satisfy the requirement of seeking prior
authorization. However, the regulation does not in any way
provide that mere notification to VA within the prescribed
time limit shall constitute VA authorization of the
hospitalization.
Thus, for the reasons discussed above, the Board finds that
all of the criteria for reimbursement or payment of the cost
of unauthorized private medical services associated with the
veteran’s medical treatment at Fort Sanders Sevier Medical
Center, from April 19 to April 20, 1993, are not met.
38 U.S.C.A. § 1728; 38 C.F.R. § 17.80.
Finally, when after consideration of all evidence and
material of record, there is an approximate balance of
positive and negative evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving such matter shall be given
to the claimant. 38 U.S.C.A. § 5107(b). However, the
preponderance of the evidence is against the veteran's claim
for entitlement to reimbursement or payment of the cost of
unauthorized private medical services associated with the
veteran’s medical treatment at Fort Sanders Sevier Medical
Center, from April 19 to April 20, 1993.
ORDER
Reimbursement or payment of the cost of unauthorized private
medical services associated with the veteran’s medical
treatment at Fort Sanders Sevier Medical Center, from April
19 to April 20, 1993, is denied.
JEFF MARTIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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